Women, Marriage and Law in Scotland: Historical and Legal Perspectives

Lead Research Organisation: University of Glasgow
Department Name: School of Law

Abstract

The historical struggle for gender equality has transformed women's access to justice in our modern world. Over the last two centuries, feminists and their supporters campaigned for women's right to vote, to own property and engage in economic networks, to seek marital separation, and to obtain custody of their children before the courts. Yet, women's struggles for equality is not a modern phenomenon and nor has it been fully achieved. Throughout history, women approached the courts in an attempt to secure their legal status and rights to property. Within the historical and contemporary landscape, there is always movement; equality usually has to be continuously fought for and, once achieved, protected. Understanding women's agency and property rights in the past can help legal practitioners and the courts make better-informed decisions when encountering similar problems today. The ways in which we make sense of women's social agency needs to acknowledge the intersectional nature of ongoing discrimination in the past. Even today, the struggle for gender equality in Scotland is far from complete, and a glaring disparity between the achieved equality of women and their lived realities still remains. The Scottish National Advisory Council on Women and Girls was established in 2017 to make gender inequality a historical curiosity by providing the First Minister with evidenced-based approaches to changing public attitudes to equality. Women still struggle to obtain equal access to justice, particularly in deprived areas of Scotland. Collaborative organisations, such as the Scottish Women's Rights Centre, assists women in achieving access to justice through legal advice, representation and advocacy. Scottish Women's Aid helps women experiencing domestic abuse to access law when seeking a divorce, securing child custody, and protection from violent partners. Historical knowledge of women's involvement in legal changes and property debates can inform current policy change and decision-making, which in turn plays a significant role in understanding women's contribution to social and legal outcomes. This project aims to brings together historians, policy-makers, and legal practitioners interested in the particularities of women's access to law to advance new ways of thinking about women's engagement with law in a historical and modern context. Exploring women's relative access to justice in early modern Scotland, this project intervenes in modern debates about women's legal subjectivity and the extent to which inequities might be disrupted or modified by political and legal change. Community Safety Minister Ash Denham recently stated that "The make-up of families in Scotland is vastly different today than it was when these laws were passed over half a century ago, including significantly more families made up of cohabiting couples and an increased number of step-families." This narrative of progress is a familiar one, often underpinning contemporary policy making and legal practice. My research to date shows that stepfamilies were common in early modern Scotland, with about a quarter of the women identified in court records in seventeenth-century Glasgow being remarried widows with children from multiple marriages. Women who asserted that they were 'repute and haldin' by the community as married women attempted to secure property following the death of their live-in partners before the lower church courts, despite not having solemnised their marriage in a legal manner. Women also attempted to prove that they were married when their cohabiting partners abandoned the household in a bid to establish their property rights. By combining innovative historical research on women's access to justice with women's organisations, legal experts and government committees, this project will have a lasting impact on current legal debates surrounding women's rights to property during the ongoing reform of succession law and cohabitation in Scotland.

Publications

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